The Registered Trustees Catholic Archdiocese of Nyeri v Tarcisio Nyaga & 5 Others (suing On Their Behalf and As Officials, On Behalf of Mathari Villagers Self Help Project’s Membership)
The bottom line
#Kenya's Court of Appeal struck out an entire appeal because the appellant never served the notice of appeal — procedural service rules are jurisdictional, not optional.
What this practically means
#Executive summary
#Key legal issues
#Competence of the notice of appeal where service on affected parties was not effected under rule 79
The notice of appeal was incompetent because the respondent admitted it was never served on the applicant as required by rule 79, and the respondent did not avail itself of other processes in the rules to remedy the default.
Rule 79 requires a party, in mandatory terms, to serve copies of the notice of appeal on all persons directly affected before or within seven days of giving notice to the registrar. The respondent admitted non-service and gave only explanations for the failure without invoking the rules' remedial procedures. Since the notice of appeal is the instrument giving the court jurisdiction over an appeal, its incompetency infects the record of appeal, which must likewise be struck out.
Whether Article 159(2)(d) cures procedural defaults in filing and serving a notice of appeal
No; Article 159(2)(d) does not oust the obligation to comply with procedural imperatives and is not a panacea for procedural shortfalls, especially jurisdictional prerequisites.
Relying on the Supreme Court's pronouncements in Raila Odinga v IEBC and Law Society of Kenya v Centre for Human Rights & Democracy, the court held that the override clause cannot be used to excuse non-compliance with mandatory procedural steps. Where the procedural step is a jurisdictional prerequisite, Article 159 offers no remedy. Mistake of counsel and prejudice arguments could not salvage an incompetent notice of appeal.
Legal principles established
#- Failure to serve notice of appeal as required by rule 79 renders the notice of appeal incompetent, and being the instrument that confers jurisdiction, renders the record of appeal incompetent.
- Article 159(2)(d) of the Constitution does not excuse non-compliance with mandatory procedural requirements, particularly where the procedural step is a jurisdictional prerequisite.
Court orders
#- 1.The Notice of Appeal dated 24th November 2021 is struck out
- 2.The record of appeal filed on 18th March 2024 is struck out
- 3.Costs of the application to the applicant
- On appeal from
- Environment and Land Court at Nyeri
- Jurisdiction invoked
- Appeal against a ruling of the Environment and Land Court; application brought under rules 77, 79, 84 and 85 of the Court of Appeal Rules. No specific constitutional or statutory provision invoking the court's appellate jurisdiction is stated.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "The Registered Trustees Catholic Archdiocese of Nyeri v Tarcisio Nyaga & 5 Others (suing On Their Behalf and As Officials, On Behalf of Mathari Villagers Self Help Project’s Membership)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/359/eng@2025-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.